A hotel has a policy of not allowing mixed sex couples to stay unless they produce their marriage certificates.

Some people have already commented that this violates the constitutional prohibition on treating people differently because they are (or are not) married.

It is unlikely to go to court, perhaps, but the fundamental issue can arise in other contexts.

IS THERE DISCRIMINATION?

Suppose two couples arrive at a hotel reception, one couple is registered because they have a marriage certificate, the other is not because they have no evidence of marriage.  Clear discrimination on the basis of marital status.

It is also discrimination against people who are married under a system of law that does not involve issuance of a marriage certificate, such as customary law, and perhaps Muslim Law. If the latter is true there is also discrimination on the grounds of religion. It is what we call “indirect discrimination”: the effect is discrimination on a particular ground even if it was not intended. It is prohibited by Article 27 of the Constitution.

Now all marriages are supposed to be registered. But many are not, especially older established relationships.

And how do we deal with “We come, we stay” marriages, which Justice David Majanja recently decided was a sufficient marriage for at least some purposes?

‘RIGHT OF ADMISSION RESERVED’

This sign is still seen sometimes in Kenya. People tend to interpret it as a colonial hangover, used to exclude non-white customers. That may be so.  It also is found in the UK, and in other countries, including South Africa.

People tend to justify it as reflecting the right of owners of private property to control who comes into their premise, and what happens there. This includes a writer in the Star in May, justifying refusal to allow a woman to breastfeed her baby in a restaurant.

You surely have a perfect right to decide who comes into your home (unless they have a right of entry under law, like the electricity meter reader or the police with a search warrant). But, if you offer a service to the public, your right to refuse that service is limited by the Constitution.

In fact, it was limited under the old constitution: “No person shall be treated in a discriminatory manner in respect of access to shops, hotels, lodging-houses, public restaurants, eating houses, beer halls or places of public entertainment”.

Discrimination meant treating people differently on the basis of race, tribe, place of origin or residence, political opinions, colour, creed or sex. Laws could allow refusal for various reasons, including public safety or health, or morality. One can see why this was a desirable provision, especially in a country that was, for much of the colonial period, an apartheid society. (In fact, it was a common provision in decolonising constitutions).

In countries that prohibit discrimination, displaying a sign saying “right of admission reserved” has no power to deflect the impact of this law. A court held that when refusal to allow people into a London pub was based mainly on racial stereotyping (namely that Irish Travellers and English Gypsies are prone to cause disorder) it was a violation of the law.

And when a Canadian nightclub refused to admit a first nations person (on an excuse about dress codes) the Human Rights Tribunal held this was discrimination and against the Charter of Rights and Freedoms.

It arose in South Africa when a wine farm, where people could marry, refused to allow a gay couple to do so (though gay marriage was legal), experts agreed the refusal was illegal.

WHAT DOES OUR CONSTITUTION SAY?

In Kenya, it is not just the state that has a duty to respect human rights: we all do. Other than in our private lives, we must not, for example, discriminate. Many reasons that people might be tempted to use as a basis for discrimination, are specifically listed as forbidden. These are race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language and birth. But that is not the end: Article 27 says there must be no discrimination “on any ground” ― the items in the list are examples, though they do cover all the likely reasons for discriminating.

The Constitution allows right to be limited by law and or good reason.  And the limitation of people’s rights must be no greater than necessary to achieve the valid purpose. The message is: limit rights as little as possible.

An example of a law that allows ― actually requires ― that people be refused admission or told to leave is the Alcoholic Drinks Control Act. It says that someone who has a licence to sell alcohol must expel anyone who is “drunk and disorderly, violent, or quarrelsome”. And people under 18 years old must be excluded from anywhere (including part of a shop) where alcohol is made, sold or consumed. Discrimination on the ground of age is require by the law.

These may be limits on rights, but they are clearly justified by the need to avoid rights, and to protect the young. A02/08/2018

WHAT ABOUT RELIGIOUS RIGHTS?

The hotel owner who wanted to see marriage certificates justified this was from a Christian point of view. Under the constitution, Article 32, everyone has the right to practice their religion. But that right can also be limited ― at least when harm to others is involved. Beliefs it is hard to control; action is different.

Suppose a person honestly believed that people of a certain colour, or with a certain disability, are a danger. We would surely not expect the law to allow them to discriminate against people of that colour or disability in providing some public service like a hotel, transport or shop. Yet they might also say: “Article 32 allows me freedom of belief and to manifest that belief”.  That is true. But we would expect a court to say the duty not to discriminate is more important than the right to practice an irrational belief.

There have been some recent cases with slightly more tricky facts.  The American Supreme Court recently decided a case in favour of a baker who refused to bake a wedding cakes for a gay couple. It seemed to be influenced mainly by the rather hostile way the baker’s religious beliefs were treated by the body that made the original decision in the case. The Court also seemed to take seriously the idea that the baker objected to using his creative skills in this way, exercising his freedom of expression.

The decision of the UK Supreme Court about a baker who refused to make a cake with the message “Support gay marriage” is awaited.

In India, the Supreme Court has just reserved its judgment on whether excluding women from a Hindu temple in honour of a celibate god can be justified on the basis of freedom of religion.

The South African constitution says that no one may discriminate “unfairly”. Kenyans thought that discrimination must necessarily be unfair. The absence of this word makes it difficult for our courts to say a particular type of discrimination is unobjectionable.

WE NEED A LAW

Limitation of rights is supposed to be done only through law. Despite my critical comments about Parliament’s law-making last week, we do need something like an Equality and Non-Discrimination Act, preceded by a national debate. Can discrimination ever justified on the basis of people’s beliefs? Should religious beliefs be valued over other sorts of beliefs? When is it legitimate, if at all, for a business to choose who it will provide its services to? Might it be all right for a small guesthouse to be selective in who it admits, but not a large hotel? When, if at all, is it permissible for people providing rental accommodation to restrict who may rent?

A law cannot override the Constitution, but it can help the courts make difficult decisions, and guide citizens.

By JILL COTTRELL GHAI